ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20190002643 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he went absent without leave (AWOL) during the end his career for his family. His children needed him because they were sick their mother was sick. He needed to be there for them because all they had was him. His commander wasn’t willing to grant him a hardship to come home. He felt as a partner and father he owed them more than he owed the Army. He regrets making the decision because of how it affected his life afterwards. His children’s mother died a year later after he went home. He was all his children had but now he has nothing to give them because of his discharge. He is unable to get certain jobs and even apply for certain benefits. 3. On 4 December 1986, the applicant enlisted in the Regular Army for three years at the age of 19. 4. On 27 December 1991, he received non-judicial punishment (NJP) for being AWOL from on or about 21 October 1991 to on or about 18 November 1991. 5. On 26 October 1992, the applicant was charged for being AWOL on or about 15 January 1992 to on or about 22 October 1992. 6. On 28 October 1992, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 7. On 15 December 1992, the appropriate separation authority approved the applicant's request. He directed the applicant be reduced to Private (E-1) and that he be furnished an UOTHC. 8. On 5 January 1993, he was discharge accordingly; he completed 5 years, 3 months, 14 days. 9. The applicant states he went AWOL during the end his career for his family. His children needed him because they were sick their mother was sick. He needed to be there for them because all they had was him. His commander wasn’t willing to grant him a hardship to come home. He felt as a partner and father he owed them more than he owed the Army. He regrets making the decision because of how it affected his life afterwards. He provides three letters of support. Collectively, they’ve met the applicant while he was attempting to obtain VA benefits. While trying to obtain his benefits he was assisting in raising his grandchildren, helping in the care of his mother, as well as assisting within his community. The applicant is homeless and is in a program but could use his benefits to overcome his homelessness. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD policy for consideration of discharge upgrade requests. The Board discussed the applicant’s service record, his period of previous honorable service, his statements regarding the reasons for his AWOL, the frequency and length of his absences, the letters of support he provided and whether to apply clemency. The Board majority determined that based on his statement and his overall record that clemency should be applied and his record should be corrected. One member did not find sufficient evidence to overcome the misconduct and support relief. 2. After reviewing the application and all supporting documents, the Board majority determined that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :XT :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 5 January 1993 to show in item 24 (Character of Service) as “General, under honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 7/3/2019 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.